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All dismissals must be notified to workers in writing through a so-called letter of dismissal, in which the reason for dismissal is clearly indicated, whether it is objective, which could be due to economic loss or changes in production, or disciplinary, which in this case would be due to errors committed by the worker. However, many companies dismiss workers verbally, sometimes out of ignorance, and mainly to save money. Therefore, in these cases it is best to seek advice from a labour lawyer. He will help you to handle the situation and will show you all the steps to follow to obtain your letter of dismissal. This will be the best option to be able to claim everything that belongs to you as a worker.
Article 55 of the workers' law states that verbal dismissal is an unfair dismissal in which the worker is entitled to compensation in addition to the corresponding liquidation.
Even so, this problem should not worry the worker or force the dismissal letter, because all the mistakes that the boss makes when making the decision to dismiss can only benefit the worker if a judicial sentence is made in this respect.
What happens to workers who are verbally dismissed?
One of the problems the worker will face is to prove that he/she has been dismissed and does not resign voluntarily. In the event that the employer informs the employment office that the dismissal is a voluntary decision of the worker, this would complicate his entitlement to unemployment benefits.
Therefore, the dismissed worker must obtain proof that the dismissal has taken place, but it must be very soon and not later than 20 working days in which he/she must sue for the dismissal. It should be borne in mind that if the time limit for prosecution is exceeded, there will be nothing to do.
The first thing a worker should do is to ask you to submit your dismissal in writing. It is always helpful if you can find someone who was there or listened to the dialogue, although if they are still company staff, it is difficult for them to want to testify on your behalf.
Another option is to record conversations between you and your boss. If there is a sudden dissolution, it is often impossible to record the dialogue, but if you suspect there may be a dissolution, you can try to record it.
In employment litigation, these recorded conversations are valid, even without notice that they are being recorded, as long as the employee participates in the conversation. If there are no witnesses or recordings of the conversation, it is best to try to get the company to receive and stamp a letter stating that you were verbally dismissed that day and confirm this information in writing. If the company does not want to send a stamped copy of the letter, a burofax should be sent to the company on the same day with proof of content and confirmation of receipt.
If there are workers' representatives, it is advisable to give them a verbal letter of dismissal so that they can prove that they have received it and, if possible, make a statement. Finally, if you do not get any of the above, it is advisable to go to work the next day as if you were not dismissed, avoiding the disciplinary action that the company actually dismisses you for not going to work.
It is always better to do this with several witnesses, and if your boss won't let you in, it is advisable to call the police to make a report of the incident, or get a notary. The latter option is more expensive, but is much more effective as a means of proof.
Requirements for a dismissal to be valid
- The employer has to notify the reasons and the effective date of the dismissal.
- The employee has the right to have everything in writing in order to be able to challenge the dismissal in the Social Court in the future.
- Even if the employee is dismissed verbally, he/she will have 20 working days to challenge the dismissal.
- As the dismissal is verbal, the dismissal is considered unfair and therefore the employee is entitled to receive maximum compensation.
In which cases is dismissal null and void?
The fact that there is no letter of dismissal does not render the dismissal null and void, but it will occur if any of the following conditions are met:
- The company is terminated at the worker's request, thus putting the compensation guarantee at risk.
- Reducing working time to care for small children or family members.
- Pregnant women, even if the company does not know about it.
- Parents taking maternity or parental leave for twelve months after the birth of the child.
- Any action by the company that discriminates against or violates workers' basic rights.
How to sue for dismissal?
For this procedure, as we have explained above, the worker will have 20 working days to carry it out. To do so, the first thing to do is to send a burofax to the company that has dismissed him/her.
This burofax will be a necessary document to prove that the dismissal has indeed taken place. In cases of dismissal of a worker without a contract, this will also be a necessary document to prove the existence of an employment relationship. Afterwards, a conciliation letter will have to be submitted.
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